On July 4, 2014, in Canadian Doctors for Refugee Care v Canada (Attorney General), 2014 FC 651, Justice Anne Mactavish declared invalid the federal government’s 2012 cuts to the Interim Federal Health Program (IFHP) for violating section 12 and 15 of the Canadian Charter of Rights and Freedoms. This ruling is compelling for the novelty of the Charter arguments and for the clarity of Justice Mactavish’s reasoning. It will be interesting to see whether her reasoning survives on appeal, especially should this case end up at the Supreme Court of Canada.

Background

The federal government funds the health care of refugee claimants and others seeking the protection of Canada under the IFHP, enacted through Order-in-Council.

In 2012, the federal government instituted changes to the program. Previously, the IFHP provided individuals who passed a means test with health care coverage for “urgent or essential” matters, preventative care and most medication costs – an amount equivalent to that granted to Canadians receiving social assistance. Under the new program, while most individuals were still entitled to care for “urgent or essential” matters, preventative care was no longer covered, and medications were now only covered for conditions posing a risk to public health or safety.

Certain individuals, such as those from a “Designated Country of Origin” or DCO under section 109.1(1) of the Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, only received coverage for conditions posing a risk to public health or safety – that is, they were not covered for conditions such as cancer, heart conditions, diabetes, and pregnancy, no matter how urgent. (DCO countries are those the Minister of Citizenship and Immigration deems “safe” and generally non-refugee producing.) Some individuals, such as those who failed to file their claims in a timely manner, were entitled to no coverage, even where their condition posed a risk to public health and safety.

The changes were widely criticized for putting the health and lives of individuals at risk, for demeaning their dignity by forcing them to seek donated coverage, and for downloading the costs of the program onto the provinces and non-profit organizations.

Justice Mactavish described the impact of the cuts on several individual claimants. For example, Mr. Akhtar, a refugee claimant awaiting determination of his case, was diagnosed with an aggressive form of lymphoma shortly after his arrival in Canada. Being a refugee claimant, under the new IFHP his hospital services were covered but not his medication costs. To pay for his chemotherapy, Mr. Akhtar sold some of his possessions, after which he says he became destitute. Eventually, the provincial government announced that they would cover his medication costs. Commenting on Mr. Akhtar’s case, the Premier of Saskatchewan stated, “It’s unbelievable…[t]he decisions that have been taken federally have been having this impact on people who are clearly the most vulnerable.”

In her decision, Justice Mactavish found the 2012 changes to the IFHP were causing illness, disability, and death. She found they violated sections 12 and 15 of the Charter and were not saved by section 1. She declared them invalid, with a four-month suspension of the declaration of invalidity.

Section 12

Section 12 of the Charter states that “[e]veryone has the right to be free from cruel and unusual treatment or punishment.” The threshold for breach is high. Treatment or punishment is cruel and unusual if it is “so excessive as to outrage [our] standards of decency” (see R v Smith, [1987] 1 SCR 1045, at para 83). The section has rarely been invoked outside the penal or quasi-penal context, although the possibility was left open in Rodriguez v British Columbia, [1993] 3 SCR 519.

Justice Mactavish found the cuts violated the section 12 rights by depriving individuals of essential health care coverage. She found that the changes put the health and lives of individuals at risk. The government argued the changes deterred unmeritorious claims and saved costs, but she found these claims were not backed by evidence.

Justice Mactavish found that the cuts were particularly cruel and unusual for their impact on children, because health and life-endangering treatment was imposed on them because of choices made by their parents. Justice Mactavish gave significant weight to international and foreign law in her reasoning, using the Convention on the Rights of the Child as well as US and UK rulings as interpretive aids (Canadian Doctors at paras 659-69).

What is especially novel about Justice Mactavish’s reasoning is her finding that cuts to a social benefit program constituted “treatment” within the meaning of section 12. She found that the situation here was different than that in Rodriguez in two ways that brought it within the meaning of “treatment”: (1) the cuts targeted certain individuals for adverse treatment, rather than applying generally to all; and (2) the targeted individuals were under state control because they were under immigration jurisdiction. That is, the state may exert control over these individuals in different ways, for example by imposing detentions or preventing them from working.

Another interesting implication of her section 12 analysis is that it essentially results in the creation of a positive right to publicly-funded health care, where withdrawing existing funding would endanger the health and lives of vulnerable, disadvantaged groups. How can we reconcile this result with her earlier finding that section 7 does not include a positive right to state-funded health care? Justice Mactavish was careful to confine her section 12 reasoning to the “unusual circumstances of this case” (at para 590). Under her reasoning, governments would not be compelled to provide health benefits, but they could not withdraw currently existing benefits if to do so would endanger the health and lives of vulnerable groups “in a manner that shocks the conscience and outrages our standards of decency” (at para 691).

Following this reasoning, section 12 may prohibit government from cutting funding to benefit programs for disadvantaged groups under state control, if the cuts would result in similarly harsh consequences. Thus, cuts to health care benefit programs for recipients of social assistance and prisoner treatment programs may be prohibited.

Section 15

Justice Mactavish went on to find that the changes to the IFHP also violated section 15 of the Charter, because they amounted to discrimination on the basis of national origin. This is notable as section 15 claims that allege discrimination on this basis are rare, and have even more rarely succeeded.

Through the changes to the IFHP, essential, “core” health care coverage was granted to some but withheld from individuals originating from DCO countries. Justice Mactavish found this distinction to be discriminatory for two reasons: (1) the distinction exacerbated the hardship suffered by a vulnerable, disadvantaged group; and (2) the changes perpetuated prejudice and stereotype. The changes were based on the belief that claimants from DCO countries are not genuine, but rather are “bogus” claimants, seeking to “game the system” and “abuse the generosity of Canadians” (at paras 828-29) – attitudes that align with historic prejudice towards certain groups of immigrants, rooted in fears of criminality and economic competition.

Justice Mactavish drew this characterization of DCO claimants from a statement previously made by the Minister’s spokesperson (at para 829). When indicating the government would be appealing the decision, Minister of Citizenship and Immigration Chris Alexander again drew on the same wording, stating “under the previous system…[t]here was not just normal health care but enhanced health care…going to people whose claims failed, whose claims were literally bogus. We don’t think…that kind of abuse should be permitted” (Laura Payton, CBC News).

Justice Mactavish’s section 15 reasoning may call into question the constitutionality of other aspects of the IRPA that impose adverse differential treatment on the basis of national origin. As Professor Sean Rehaag notes, DCO claimants are denied the availability of an administrative appeal from a decision of the Refugee Protection Division to the Immigration and Refugee Board. Regulations have created expedited timelines for DCO claimants making claims to the Refugee Protection Division, as compared to other claimants. The regulations also bar DCO claimants from obtaining work permits until 180 days elapse following the date their claim was referred to the Refugee Protection Division, a restriction not imposed on other claimants. Finally, DCO claimants do not gain access to a Pre-Removal Risk Assessment for three years after their refugee claim is denied, as compared to one year for regular claimants.

Conclusion

Justice Mactavish has made unprecedented forays into section 12 Charter territory. Her reasoning is new, so it is unclear whether it will survive on appeal. Nevertheless, she has made a compelling case for interpreting section 12 as imposing obligations on governments to provide essential health care services for disadvantaged groups.

Her section 15 reasoning is more likely to be upheld on appeal because it conforms with existing jurisprudence. However, if the section 15 reasoning is upheld but the section 12 reasoning is not, the remedy will be more limited. The program will continue to validly withhold coverage based on other distinctions, such as an individual’s status within the refugee determination process. The applicants attempted to establish “immigration status” as an analogous ground within the meaning of section 15; however, Justice Mactavish was bound by a previous Federal Court of Appeal decision that held the contrary. Thus, the applicants will likely attempt to convince the Federal Court of Appeal to overturn their earlier finding, and, should leave be granted, to convince the Supreme Court of Canada that “immigration status” should be recognized as an analogous ground.

Regardless of what happens on appeal, the Canadian Doctors ruling stands as an addition to a string of recent remarkable decisions where the Charter has been employed to protect the rights of vulnerable and disadvantaged groups.